New Alimony Bench Book Available

The TBA Family Law Section today announced publication of the 11th Edition Alimony Bench Book. Produced by the members of the section’s Alimony Committee, the book is available for purchase in a loose-leaf format for $40 or a three-ring binder for $50. To order the book, visit the TBA’s online bookstore or contact TBA at (615) 383-7421. Members of the Family Law Section can download the new edition at no charge by logging in to TBA.org and going to the Resources link on the Family Law Section's webpage. The goal of the publication is to assist judges in the consistent awarding of alimony across the state and help lawyers present their cases in court.

Today's Opinions

Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format.

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A crane struck a large metal container, pushing a door on the container into an employee and causing an injury to the employee’s back. The employee filed a claim for workers’ compensation benefits. The trial court entered a judgment finding that the employee’s inability to work and depression were caused by a preexisting condition that was unrelated to his work-related injury and that the employee sustained a 21% permanent partial disability for the injuries to his lumbar spine. The employee has appealed, contending that the trial court erred by finding that his pre-existing condition was not aggravated by his work injury. The employer contends that the trial court erred by finding that the employee is permanently disabled as a result of his injury.

A woman who was severely injured in a collision with an automobile driven by an unlicensed minor filed suit against the minor. The minor’s parents’ insurance company denied coverage and refused to defend the suit on the basis of an exclusion in the insurance policy for damages caused by a party driving without permission of the owner or a person “in lawful possession” of the vehicle. No defense was offered, and the injured party obtained a $1 million default judgment against the minor driver. The injured party and the minor’s parents then jointly filed suit against the insurance company, alleging that the insurance company was liable for breach of contract, bad faith, violation of the Tennessee Consumer Protection Act, and violation of the Unfair Claims Practices Act based upon its denial of coverage. The trial court ruled that, as a matter of law, the minor was entitled to insurance coverage under her parents’ policy at the time of the accident. The remainder of the case was tried, and the plaintiffs were awarded compensatory and punitive damages on the bad faith claim. The jury also found the insurance company had violated the Tennessee Consumer Protection Act, and the trial court trebled the compensatory damages and awarded attorney fees under the Act. The insurance company has raised a number of issues in this appeal, inter alia, the grant of partial summary judgment to the plaintiffs on the question of coverage; the finding of liability for bad faith, the liability and enhanced penalty under the TCPA, and the requirement that plaintiffs should make an election between the punitive damages and the enhanced damages. We affirm the breach of contract holding, including the conclusion that the policy terms provided coverage. We reverse and vacate the holding of liability for bad faith, including the award of punitive damages thereunder, since the statutory cause of action was not plead. We also reverse the award of treble damages under the TCPA, but affirm the finding of a violation of the Act. We affirm as modified the award of attorneys’ fees.

The plaintiff filed a medical malpractice action against numerous healthcare providers. The defendants moved to dismiss the complaint based on the plaintiff’s failure to comply with Tennessee Code Annotated sections 29-26-121 and -122. The trial court granted the motions and dismissed the action with prejudice. The plaintiff appeals. We affirm.

The Defendant-Appellant, Lamar Kashief Allen, entered guilty pleas to possession of cocaine with intent to sell an amount less than one-half gram and tampering with evidence, Class C felonies, and received an effective six-year sentence with the manner of service to be determined by the court. After a sentencing hearing, the court ordered confinement in the Tennessee Department of Correction. The sole issue on appeal is whether the trial court erred in denying Allen’s request for alternative sentencing. Finding no error, we affirm the judgments of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; Amy P. Weirich, District Attorney General; and Greg Gilbert, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Anthony Barnes, appeals the denial of his petition for post-conviction relief. He pled guilty to possession of cocaine with intent to deliver and possession of marijuana with intent to deliver. The plea agreement provided for an effective eight year sentence and, further, that the petitioner could apply for a suspended sentence. After a hearing, the trial court ordered that the sentence be served in incarceration. In this appeal, the petitioner contends that his plea was not entered knowingly and voluntarily because he was denied his right to the effective assistance of counsel. Specifically, he contends that trial counsel was ineffective for failing to ensure that the State complied with an agreement to recommend probation to the trial court. Following review of the record, we affirm the denial of postconviction relief.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; H. Greeley Welles, Jr., District Attorney General; and William B. Harper, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge: WOODALL

This is the second appeal as of right by Defendant, Robert Edward Boling, from his conviction in the Sullivan County Criminal Court for aggravated robbery. In his first appeal as of right, this Court addressed only the issue of the sufficiency of the evidence to sustain the conviction, affirmed the conviction on that issue, and refused to address all other issues because they were waived by Defendant’s attorney’s failure to timely file a motion for new trial. See State v. Robert Edward Boling, No. E2008-00351-CCA-R3-CD, 2009 WL 482763 (Tenn. Crim. App. Feb. 26, 2009) no perm. app. filed. Subsequently, Defendant timely filed a petition for post-conviction relief. The post-conviction court granted Defendant a delayed appeal pursuant to Tennessee Code Annotated section 40-30-113(a)(1)(“When the trial judge conducting a hearing pursuant to [the Post-conviction Procedure Act] finds that the petitioner was denied the right to an appeal from the original conviction in violation of the Constitution of the United States or the Constitution of Tennessee . . . the judge can . . . grant a delayed appeal;”). In accordance with our supreme court’s opinion in Wallace v. State, 121 S.W.3d 652 (Tenn. 2003), the untimely motion for new trial being a nullity, Defendant was granted the ability to file a timely motion for new trial. He did, and it was overruled. Defendant now appeals his conviction for the second time and appropriately raises two issues for our review in this appeal: (1) the trial court erred by denying his motion for new counsel; and (2) the trial court erred by denying his objection to certain photographs and testimony, which Defendant asserts were “fruit of the poisonous tree” of his coerced confession. Defendant’s third issue, the post-conviction claim of ineffective assistance of counsel at the trial, is premature. After a review of Defendant’s two properly presented issues, we again affirm the judgment of conviction.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel; Amy P. Weirich, District Attorney General; and Alanda Dwyer, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The petitioner, Jameel Childress, appeals the habeas corpus court’s summary dismissal of his petition for the writ of habeas corpus. In January, 1999, the petitioner pled guilty, in seven separate cases, to two counts of robbery, two counts of aggravated robbery, two counts of unlawful possession of a controlled substance, and one count of theft of property over $1000. Because all sentences imposed in the case were ordered to be served concurrently, the petitioner received an effective sentence of nine years in the Department of Correction. On appeal, he contends that the habeas corpus court erred in dismissing his petition because the sentences imposed are illegal, as they were statutorily required to be served consecutively because the petitioner was on bond when the offenses were committed. Following review of the record, we affirm the dismissal of the petition for relief.

The appellant, Alexander Fuller, appeals the Davidson County Criminal Court’s revoking his probation for theft of property valued one thousand dollars or more but less than ten thousand dollars and ordering that he serve his eight-year sentence in confinement. Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

The Petitioner, Charlie M. Gardner, appeals from the summary dismissal of his petition for coram nobis relief. In 1999, the Petitioner was convicted of first degree murder and two counts of reckless aggravated assault for which he received an effective sentence of life without parole plus eight years. Eleven years later, he filed a petition for writ of error coram nobis alleging due process requires tolling the statute of limitations based upon an undisclosed “third party confession” and an “inconclusive T.B.I. report on ballistic evidence.” Upon review, we affirm dismissal of the petition.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; C. Phillip Bivins, District Attorney General, for the appellee, State of Tennessee.

Judge: WILLIAMS

The defendant, Thomas Ray Ward, appeals the Dyer County Circuit Court’s revocation of his probationary sentence. Pursuant to a negotiated plea agreement, the defendant pled guilty to three counts of burglary of a motor vehicle, Class E felonies, and was given consecutive two-year sentences for each offense. However, the defendant was placed on probation for a period of eight years. A violation warrant was subsequently issued, and, at the hearing, the defendant acknowledged that he had committed the technical violations of his agreement. The trial court found the defendant to be in violation of the terms and conditions of his probation and ordered that the balance of the reinstated six-year sentence be served in incarceration. On appeal, the defendant contends that the decision to revoke was error because it was based upon the fact that the defendant had prior violations of his probation rather than on the technical violations which were established at the hearing. Following review of the record, we affirm the revocation of probation.

Today's News

Legal News

Nominating Commission to Meet Friday, Consider 5 for Vacancy

The Judicial Nominating Commission will meet Friday to interview and hear public comments on five attorneys who have applied to fill an upcoming vacancy on 17th Judicial District Circuit Court. Judge Robert Crigler has announced he will retire from the bench in May. The meeting will take place at the Blue Ribbon Circle Club/Celebration Grounds in Shelbyville beginning at 9 a.m. Candidates for the position are solo practitioner Forest A. Durard Jr. of Shelbyville; Assistant District Attorney General Brooke Charles Grubb of Fayetteville; Medley & Spivy partner Barbara G. Medley of Lewisburg; John Harvey Norton III, senior member of the Norton Law Firm in Shelbyville; and Assistant District Attorney General Michael Randles of Lewisburg. Information about the candidates is available on the AOC website.

Corporate Counsel Gala Honors Pro Bono Work

Corporate counsel and private bar lawyers, along with a diverse group of sponsors, were honored at the Seventh Annual Corporate Counsel Pro Bono Initiative Gala in Nashville this past Saturday. Tennessee Supreme Court Chief Justice Gary R. Wade gave the keynote address, praising the initiative’s emphasis on pro bono service and encouraging all lawyers to fulfill the ethical responsibility of providing legal assistance to those in need. TBA President Jackie Dixon presented this year’s awards to Memphis-based Burch, Porter & Johnson for its partnership with St. Jude Children’s Research Hospital and to the corporate legal department of BlueCross BlueShield of Tennessee in Chattanooga for its Street Law program and new Hamilton County Legal Clinic. See photos from the event or read more about the award recipients.

Opposing Groups Weigh in on Lawyer Ads

The Tennessee Association for Justice is supporting a rules change pending before the state Supreme Court that would block lawyers’ television ads that dramatize their stories of success, saying such ads stretch the truth. The court is considering whether to ban the use of models and actors posing as clients in lawyer advertising. Others, however, oppose regulation by the court. The Nashville firm of Bart Durham Injury Law told the Nashville Business Journal that it plans to file a brief opposing the proposed rules, suggesting that the move to block ads like his might be “another different attempt at a grab for market share.”

Saint Thomas Blames FDA for Meningitis Outbreak

Lawyers for Saint Thomas Outpatient Neurosurgery Center are blaming officials with the U.S. Food and Drug Administration (FDA) and state officials for last year's fatal outbreak of fungal meningitis, The Tennessean reports. The center says the FDA failed to make findings available that showed the New England Compounding Center -- which supplied the tainted injections -- was out of compliance with regulations. It also argues that the Tennessee Health Department was responsible for any delays in notifying patients of the outbreak.

Campaign for Equal Justice Kicks Off 2013 Campaign

More than 150 lawyers gathered today for a Kickoff Luncheon to the 2013 Campaign for Equal Justice benefiting the Legal Aid Society and the Nashville Pro Bono Program. Campaign Chair Thor Urness of Bradley Arant Boult Cummings LLP announced that the campaign has already raised $440,000 towards its goal of $760,000. Featured speaker Tennessee Attorney General Robert E. Cooper Jr. emphasized the responsibility of every lawyer to provide pro bono assistance, especially given the significant cuts in legal aid funding in recent years. More than 30 law firms in Davidson and Williamson counties were recognized for their role in the Leadership Cabinet, contributing at least $400 per attorney to the campaign. Every year, the Legal Aid Society and its pro bono partners serve thousands of low-income individuals in 48 Tennessee counties. Pinnacle Financial Partners sponsored the event at the City Club. See photos from the event.

New AWA President Brings Unique Life Experience to Job

Memphis lawyer Fran Riley was installed as president of the Association for Women Attorneys at the organization’s recent annual banquet and silent auction. Riley, who is a law clerk to the U.S. Bankruptcy Court for the Western District of Tennessee, says she plans to continue the group’s traditional programs but also institute a formal mentoring program for law students and professionals. In an interview with the Memphis Daily News, Riley disclosed a little-known fact about her background: before becoming a lawyer, she worked on the initial conceptual design for turning the Lorraine Motel into the National Civil Rights Museum.

Practice Management

Study: Alternative Fee Arrangements on the Decline

When the slowing economy forced companies to curb legal spending in recent years, alternative fee arrangements were touted as a solution, but the billing trend has been slow to take hold in Nashville, and a new survey of in-house counsel shows that alternative fees are trending downward nationwide. A study by the Houston-based law firm Fulbright & Jaworski, found a 10 percent drop in companies using alternative fee arrangements and a 13 percent drop in firms planning to use alternative structuring in the coming year. The Nashville Business Journal reports on the study.

General Assembly News

Bill Would Allow Student ID, Ban Library Card for Voting

A new bill introduced by state Sen. Bill Ketron, R-Murfreesboro, and Rep. Susan Lynn, R-Lebanon, would allow student photo identification cards issued by state universities and colleges to comply with Tennessee’s voter photo ID law. But SB 125 also would explicitly prohibit photo IDs issued by public libraries and other local agencies and governments from meeting that requirement, The Commercial Appeal reports. The legislation would reverse a Tennessee Court of Appeals decision upholding library cards as valid ID for voting. That case is pending before the state Supreme Court, which is expected to issue a ruling by summer.

Upcoming

Memphis Law Symposium to Focus on Trafficking

The University of Memphis Law Review’s annual symposium will be held March 22. The full-day event will look at the issue of human trafficking in the court system from an international, national, statewide and local perspective. Tennessee recently passed some of the strongest anti-trafficking laws in the country, which means these cases likely will arise more frequently in state courts. The symposium will feature speakers from state and local law enforcement, federal agencies and nonprofit organizations. Learn more or register online.

BPR Actions

Colorado Lawyer Censured

Colorado lawyer Philip M. Kleinsmith, who is licensed to practice law in Tennessee, received a public censure from the Tennessee Supreme Court on March 4. The censure was imposed as reciprocal discipline after he was reprimanded and placed on probation for one year in Colorado. However, the Colorado Supreme Court made early termination possible if Kleinsmith completed an ethics program it provided. The court has now reported that Kleinsmith successfully completed that program and the probation has been removed. Download the BPR release.

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.